Citation NR: 9725978
Decision Date: 07/28/97 Archive Date: 08/06/97
DOCKET NO. 93-23 436 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to service connection for residuals of an injury
of the right foot or ankle.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Joseph P. Gervasio, Counsel
INTRODUCTION
The veteran served on active duty from March 1971 to March
1975.
This case comes to the Board of Veterans’ Appeals (Board) on
appeal of a March 1992 rating decision of the St. Petersburg,
Florida, Regional Office (RO) of the Department of Veterans
Affairs (VA).
The case was remanded by the Board in September 1995.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that service connection is warranted for
residuals of a right ankle or foot injury that he sustained
while on active duty. He points out that the service medical
records document the incurrence of this injury and asserts
that he has had difficulties with residuals of this injury
since his discharge from service.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1996), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against the claim for service connection for
residuals of an injury of the right ankle or foot.
FINDING OF FACT
An injury of the right foot and ankle during service is not
shown to be related to current right foot and ankle
disability.
CONCLUSION OF LAW
Residuals of an injury of the right foot and ankle were
neither incurred in nor aggravated by service. 38 U.S.C.A.
§ 1110 (West 1991 & Supp. 1995); 38 C.F.R. § 3.303 (1996).
REASONS AND BASES FOR FINDING AND CONCLUSION
In order to establish service connection for a claimed
disability, the facts, as shown by the evidence, must
demonstrate that a particular disease or injury resulting in
current disability was incurred during active service or, if
preexisting active service, was aggravated therein.
38 U.S.C.A. §§ 1110, 1131. If a condition noted during
service is not shown to be chronic, then generally, a showing
of continuity of symptoms after service is required for
service connection. 38 C.F.R. § 3.303(b).
I. Factual Background
Service medical records show that the veteran was treated in
August 1971 for a questionable foreign body in the right
foot. Examination showed a probable small vein swelling or a
ligament growth on the lateral right foot. No other
treatment for this condition is shown. In May 1974, the
veteran complained of having twisted his ankle two days
earlier while running aerobics. No edema or ecchymosis was
noted and he had full range of motion without pain. The
assessment was of a sprain.
The veteran was afforded a VA examination in September 1981.
At that time, evaluation of the musculoskeletal system was
normal.
VA outpatient treatment records, dated in January 1992, show
that the veteran was treated for a complaint of a painful
right ankle of 20 years duration. At that time, X-ray
studies showed no foreign body, but an old cortical tear,
with a bone chip. The assessment was old inversion injury of
the right ankle.
A hearing was conducted at the RO in October 1992. At that
time, the veteran testified that he had sustained an ankle
injury during service and that, while the condition had been
symptomatic during the years following service, he had not
sought treatment until 1992 when he developed a sharp pain.
Statements from James D. Glenn, M.D., dated in December 1992
and January 1993, show that the veteran was seen in December
1992 for complaints of pain in the right foot and ankle. The
veteran stated that he had sustained a service connected
injury in 1971. Dr. Glenn indicated that, if the veteran did
have a service connected injury, this was most likely an
aggravation of the pre-existing problem. An arthrogram of
the right ankle, performed in January 1993, was unremarkable.
Statements have been submitted from various people who were
acquainted with the veteran while he was on active duty.
They all indicate that the veteran sustained an injury of his
right ankle during service. Also submitted to support the
incurrence of such an injury are letters dated
contemporaniously with the events, that indicate that the
veteran sutained the injury.
Medical records from the Kennedy Space Flight Center,
received by VA in March 1996, show that the veteran sustained
an injury of his right ankle in a work related accident while
moving a 40 foot ladder. At that time, X-ray studies showed
no fracture or dislocation and no loss of joint space. The
assessment was contusion of the right lateral malleolus, with
abrasion.
An examination was conducted by VA in April 1996, pursuant to
the development requested in the September 1995 remand by the
Board. At that time, the veteran’s medical history included
a reference to a service-connected injury of the right ankle
in 1971, reportedly a fracture of the distal end of the ankle
bone. A second injury, in 1974, was also reported. The
veteran had had complaints of pain and swelling off and on
ever since, but had not sought treatment between the last in-
service treatment and the initial postservice VA treatment.
He denied any other injuries during those years. After
evaluating the veteran’s right ankle, the examiner rendered
an opinion that he believed that the current ankle and foot
disability were related to the symptoms noted in the service
as well as to the injuries sustained during service.
An examination was performed by VA in June 1996. At that
time, the examiner was requested to review the veteran’s
claim folder as requested in the September 1995 remand. The
examination report shows that the examiner reviewed the
veteran’s medical records. Following this review, a physical
examination and diagnostic testing, the diagnosis was history
of right ankle sprain, documented in May 1974, now complains
of persistent pain, swelling and instability. The examiner
stated that, based on the review of the medical records, it
could not be directly proved that the current symptoms were
related to the past symptoms. It was considered to be highly
unlikely, based on the fact that he did have a documented
evaluation and treatment for a lateral ankle sprain in May
1974, that the current symptoms of lateral ankle pain are
related to that past injury.
II. Analysis
It is initially noted that this claim on appeal is well
grounded; that is, it is not inherently implausible. It is
also found that the facts relevant to this issue have been
properly developed and the statutory obligation of the VA to
assist the veteran in the development of his claim has been
satisfied. 38 U.S.C.A. § 5107(a). It is noted that this claim
is rendered plausible by the medical opinion of a VA
physician, that the current ankle and foot disability is
related to symptoms noted during service. King v. Brown, 5
Vet.App. 19, 21 (1993).
The record shows that the veteran sustained an injury of his
right ankle during service. For the establishment of service
connection, it must be demonstrated that the current symptoms
are related to that injury. Several statements regarding the
possibility of such a relationship have been submitted. For
reasons which will be given, after review of the evidence it
is found that the more credible medical opinion is that of
the examiner who examined the veteran in June 1996.
The veteran was first examined by James D. Glenn, M.D. in
December 1992. While Dr. Glenn stated that the veteran’s
current foot pain was most likely an aggravation of a pre-
existing service connected injury, he stated that he had
reviewed a record dated in August 1971 that believed the
veteran had sustained an inversion injury at that time.
Review of the record itself shows no reference to an injury
in August 1971, but of a questionable foreign body in the
right foot. An ankle sprain is not demonstrated until May
1974. Therefore, the opinion is based on an erroneous
history and is suspect. See Reonal v. Brown, 5 Vet.App. 458
(1993). Moreover, the arthrogram of the right ankle
performed to ascertain the nature of the veteran’s disability
was unremarkable, indicating that the veteran may not have
the type of residuals referred to by Dr. Glenn.
The VA physician who examined the veteran in April 1996 and
rendered an opinion that the veteran’s current complaints
were related to an inservice injury were also based on an
erroneous medical history. The examiner referred to a
fracture of the distal end of the ankle bone. The service
medical record do not show that the veteran sustained such a
fracture, and the veteran has not contended otherwise. For
this reason, the Board finds this opinion to be less credible
than that formulated by the examiner who evaluated the
veteran’s condition in June 1996. Id.
In June 1996, the examiner completely reviewed all of the
veteran’s medical records in detail. The supporting reasons
given for this opinion are based on the actual records in the
file, as opposed to erroneous assumptions and are, therefore,
found to be more credible.
Finally, it is noted that the veteran’s ankle sprain was not
shown to be chronic in the service medical records. Where a
condition noted during service is not shown to be chronic,
and a veteran fails to account for a lengthy time period for
which there is no clinical documentation of the disorder, he
has failed to provide a demonstration of continuity of
symptomatology and service connection is not warranted.
Mense v. Derwinski, 1 Vet.App. 354.
The preponderance of the evidence is against the claim, and
therefore the benefit of the doubt doctrine is inapplicable
and service connection is denied. 38 U.S.C.A. § 5107(b);
Gilbert v. Derwinski, 1 Vet.App. 49 (1990).
ORDER
Service connection for residuals of an injury of the right
ankle is denied.
C. P. RUSSELL
Member, Board of Veterans' Appeals
38 U.S.C.A. § 7102 (West Supp. 1996) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination. This proceeding has
been assigned to an individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1996), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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